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14. Children's evidence

Children as reliable witnesses

Assumptions of unreliability

14.15 The common law in Australia has traditionally viewed children as
unreliable witnesses. The perception has been that children are prone to
fantasy, that they are suggestible and that their evidence is inaccurate. The
following statement by a prominent legal scholar typifies the prejudices and
assumptions about children's evidence.

First, a child's powers of observation and memory are less
reliable than an adult's. Secondly, children are prone to live in a
make-believe world, so that they magnify incidents which happen to them or
invent them completely. Thirdly, they are also very egocentric, so that details
seemingly unrelated to their own world are quickly forgotten by them. Fourthly,
because of their immaturity they are very suggestible and can easily be
influenced by adults and other children. One lying child may influence others
to lie; anxious parents may take a child through a story again and again so
that it becomes drilled in untruths. Most dangerously, a policeman taking a
statement from a child may without ill will use leading questions so that the
child tends to confuse what actually happened with the answer suggested
implicitly by the question. A fifth danger is that children often have little
notion of the duty to speak the truth, and they may fail to realize how
important their evidence is in a case and how important it is for it to be
accurate. Finally, children sometimes behave in a way evil beyond their years.
They may consent to sexual offences against themselves and then deny consent.
They may completely invent sexual offences. Some children know that the adult
world regards such matters in a serious and peculiar way, and they enjoy
investigating this mystery or revenging themselves by making false accusations.[46]

This view was reflected in rules of
evidence that limited children's competence to give evidence and required
corroboration and judicial warning in relation to children's evidence.

14.16 Traditionally, rules of competence required that a child possess
sufficient understanding of the nature and consequences of an oath before being
able to give sworn evidence.[47]
The common law approach demanded that the child demonstrate a belief in God and
divine vengeance, a formulation arising from eighteenth century cases.[48]This approach effectively discriminated against children who did not have
any particular religious beliefs or who adhered to religious beliefs that did
not include a single deity or punishment for wrong-doers.

14.17 In addition, until recent amendments to the rules of evidence, the law
in all States and Territories required that, where the child was incapable of
giving sworn evidence, any unsworn evidence of the child had to be corroborated
before a criminal conviction could be sustained.[49]
A child's unsworn testimony was capable of corroborating another child's sworn
testimony but the unsworn testimony of one child could not corroborate the
unsworn testimony of another child.[50]
This rule meant that several young children abused by one person could not give
unsworn evidence to corroborate each other.

14.18 The law in all Australian jurisdictions until recently also required
that judges warn juries that it was dangerous to convict on the uncorroborated
evidence of a child, even when the child witness was deemed capable of giving
evidence under oath.[51]
Warnings of this kind had the effect of labelling children as an unreliable
class of witnesses.[52]
Juries were likely to take the warning as a hint from the judge to acquit
where, as often happens when a child is the victim of abuse, the child was the
only witness to the incident.[53]

Children as witnesses: recent research

14.19 Recent research into children's memory and the sociology and psychology
of disclosing remembered events has established that children's cognitive and
recall skills have been undervalued.[54]
At the same time other research has demonstrated that adult testimony is not
always reliable, showing that mature witnesses' memories can be equally fragile
and susceptible to the distorting influences of suggestion and misinformation.[55]
The presumed gulf between the reliability of evidence from children and that
from adults appears to have been exaggerated.[56]

14.20 Children, including very young children, are able to remember and
retrieve from memory large amounts of information, especially when the events
are personally experienced and highly meaningful.[57]
However, children, and adults to a lesser degree, have significant memory loss
after long delays. They recall less correct information over time while
maintaining as a constant the inaccurate information.[58]
Studies demonstrate that ability to remember and describe an event accurately,
both at the time of questioning and at later dates, can be dependent on
interviewing method.

14.21 Interviews, if skilfully conducted, can help both child and adult
witnesses to consolidate and retain their memories.[59]
However, using misleading and suggestive questioning techniques during an
interview adversely affects young children's ability to recall an event
accurately, just as to a somewhat lesser degree it adversely affects older children
and adults.[60]
Repeating a question within a single interview session can also lead to young
children changing their answer to that question, perhaps because they interpret
the repetition of the question as an indication that their first answer was wrong.[61]
In addition, when young children are asked to recount, in a free recall
narrative, everything they remember, they typically remember less detail than
older children or adults, although the information they do recall is generally
just as accurate.[62]
More details of the events can be recalled during questioning that provides
non-leading cues to memory for those details not spontaneously supplied.[63]

14.22 Recent studies have also examined whether children are able to
distinguish fact from fantasy or whether they have a propensity to lie
deliberately about events that did not occur. This research has found that
children are often as accurate as adults at discriminating the origins of their
memories.[64]
In addition, there is no psychological evidence that children are in the habit
of fantasising about the kinds of incidents that might result in court
proceedings[65]
or that children are more likely to lie than adults.[66]
Indeed, research suggests that children may be actually more truthful than
adults. Certainly, the research on children's beliefs about court proceedings
implies that children may be more cautious about lying in the witness box than
adult witnesses.[67]
When children do lie to an adult, the adult is usually well able to discern
this, particularly with younger children.[68]

14.23 Ironically, research indicates that the major problem with children's
evidence is not the risk of a child making false allegations, although this is
still a possibility. Rather the major problem is their significant level of
false denials and retractions. While children can be encouraged to say that an
event occurred knowing full well that it did not, this is difficult to do. When
children do make false statements at the encouragement of others, the
statements are often not very credible and these children rarely persist with
their made up story.[69]
On the other hand, to avoid punishment, to keep promises not to tell or to
avoid revealing embarrassing information, most children will deny knowing
information about an event that they know occurred.[70]

14.24 Difficulties can also arise when children are questioned about
particular times and dates. This is particularly problematic for younger
children who have not yet learned to tell time on a clock, who may confuse
calendar dates or who have trouble reporting events in exact chronological
order.[71]
These children may report events out of order or be unable to give a particular
date or time. However, this does not have any bearing on the accuracy of the
description of the event reported.[72]

Implications for investigations and courtroom encounters with child
witnesses

14.25 The research on children's memories and their reliability has important
implications for the way in which child witnesses are interviewed during
pre-trial investigations and questioned in court. The quality of a child
witness' evidence can depend on the communication skills and expertise of the
interviewer and/or the questioner in court. Legal processes can and should be
modified to ensure that, as far as possible, child witnesses can give reliable,
comprehensive information as required.

[64]
S Lindsay & M Johnson 'Reality monitoring and suggestibility:
Children's ability to discriminate among memories from different sources' in S
Ceci et al (eds) Children's Eyewitness Memory Springer-Verlag New York
1987, 103–107. In these studies, however, the actions performed bore little
resemblance to the typical events of a crime and, combined with the fact that
children were instructed to imagine rather than using spontaneous imagination,
the applications of this research to child witnesses is limited. eg, children
were asked to touch their nose or imagine touching their nose, to watch a girl
touch her nose or to imagine the girl touching her nose: JR Spencer & R
Flin The Evidence of Children:The Law and the Psychology
Blackstone Press London 1990, 258.

[65]
JR Spencer & R Flin The Evidence of Children: The Law and the
Psychology Blackstone Press London 1990, 259.